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An unnecessary row

May 30, 2012

THE squabble over the selection of a new chief election commissioner (CEC) reveals a peculiar feature of Pakistan’s political culture that impedes the growth of democratic conventions.

The main opposition party is angry that the PPP and the JUI-F teamed up to get a member of the latter party — who happens to be the leader of the opposition in the Senate — elected as chairperson of the parliamentary committee that will select the CEC. The opposition obviously believes that this will help the ruling coalition parties install their favourite as the next CEC and, as a consequence, its electoral prospects will be adversely affected.

To a considerable extent these apprehensions are groundless and may be based on an inadequate understanding of the reduction in the powers of the CEC vide the 18th Amendment. Before this amendment the CEC was responsible for the preparation and revision of electoral rolls, for organising and conducting Senate elections and by-elections to any house of parliament or provincial assembly, and for appointing election tribunals.

The CEC was entrusted with all these tasks because he was the only permanent member of the Election Commission (EC) which was charged with the duty to organise and conduct any election to any federal or provincial legislature. Until the Musharraf regime provided for the appointment of four members of the commission, one from each of the four provinces, on a permanent basis, the EC used to be constructed after an election had been called. That arrangement attracted severe criticism from all authorities on electoral practices and Pakistani observers interested in fair elections.

The 18th Amendment has brought about three changes of fundamental importance. First, the tenure of the CEC has been increased from three to five years. Secondly, the CEC is to be chosen by a parliamentary committee out of three names proposed by the prime minister in consultation with the leader of the opposition. And, thirdly, the responsibilities of the CEC have been transferred to the EC headed by him and including four former judges of high courts.

Now, the EC as a whole is responsible for:

“a) preparing electoral rolls for election to the National Assembly and the provincial assemblies and revising such rolls annually;

“b) organising and conducting election to the Senate or to fill casual vacancies in a house (of parliament) or a provincial assembly;

“c) appointing election tribunals;

“d) the holding of general elections to the National Assembly, provincial assemblies and the local governments;

“e) such other functions as may be specified by an act of Majlis-e-Shura (parliament)”.

Incidentally, the 18th Amendment has left two provisions of questionable merit untouched.

The CEC must still be a judge of the Supreme Court (sitting or retired) or a person qualified to join the apex court.

Experience has shown that in Pakistan a CEC must have, besides legal acumen — or perhaps more than that — sufficient capacity to appreciate and promote democratic values. He is required not only to decide matters in accordance with judicial norms, he also has a political role. Thus, an academic of high standing or public servant (as in India) also should be eligible for the post.

The second provision relates to the appointment of an SC judge as an acting CEC by the chief justice. Instead of involving the CJ in a matter that has political implications and depriving the SC of the services (temporarily, though) of a judge, it might have been better to let the most senior member of the EC function as acting CEC. Since he must be a retired judge of a high court, he should be qualified for appointment as an SC judge.

At the same time, the failure to provide for the appointment of at least one woman as a member of the EC can only be regretted.

To return to the present controversy over the choice of a new CEC, it is clear that the CEC is no longer in absolute command; he is only the leader of a team that includes four retired high court judges, and their ability to check any deviation from the rules need not be doubted. The possibility that a CEC may act on whim or favour a party has largely been eliminated.

The new procedure devised through the 18th Amendment is based on bi-partisan agreement on key appointments. The prime minister and the leader of the opposition in the National Assembly are required to present three names to a special parliamentary committee which will select one of the nominees for appointment as the CEC by the president. In case they do not agree on three names, the government and the opposition can submit separate lists of three nominees each. The drama we are at the moment witnessing is currently at this stage.

A major hurdle to the consolidation of democratic norms now is the proven inability of the leaders of the ruling party and the opposition to agree on key appointments. When the late Justice Dorab Patel first proposed (22 years ago) that the key constitutional offices should be filled under an agreement between the leaders of the house and the opposition, he assumed politicians’ ability to rise above their partisan interests and personal predilections while choosing the best persons for high posts.

Obviously, he did not take into consideration the determination of Pakistan’s political highwaymen to avoid the path of democratic culture. The debate over the CEC is a symptom of a strong commitment to petty partisan, often personal, interests in preference to the dictates of democracy. Unless political parties learn to respect each other and cooperate, there will be no possibility of giving democracy a fair trial. Although all parties claim that they want an independent CEC, perhaps each one of them would like an independent authority to act objectively — in accordance with its wishes. The underlying belief is that if a rival party’s nominee is made the CEC he would be able to show favour to it.

Instead of fighting over one another’s nominees, the political parties will do well to develop the system in such a manner that the CEC has no discretionary powers. That the possibility of acting in personal discretion is one of the main causes of corruption cannot be denied. While making efforts to select an appropriate person for the post of the CEC, it is also necessary to ensure the creation of a system that nobody can manipulate.